How Real Property Transfers at Death and Why Probate May Be Necessary

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney in Montana for advice regarding your situation.

Detailed Answer

In Montana, some real estate interests pass outside of probate. Others require a formal estate administration. Understanding the difference can save time and costs.

Non-Probate Transfers of Real Property

Certain property interests automatically transfer at death. These include:

• Joint tenancy: When two or more owners hold property as joint tenants with right of survivorship, the surviving owner automatically inherits the decedent’s share. No probate is needed. (Mont. Code Ann. § 72-2-115)
• Transfer-on-death deeds: A deed that names a beneficiary takes effect at the owner’s death. The beneficiary records an affidavit of death and deed to claim title. (Mont. Code Ann. § 72-2-124; see https://leg.mt.gov/bills/mca/title_0720/chapter_0020/part_0010)
• Life estates with remainder: If the decedent reserved a life estate and named a remainder beneficiary, the remainder interest vests at death.

Why Probate Is Required for Other Real Property

Property titled solely in the decedent’s name, without a named survivor or beneficiary, must go through probate. Key reasons include:

• Identifying heirs and beneficiaries: Probate validates the will and confirms who inherits the property. (Mont. Code Ann. § 72-3-102; see https://leg.mt.gov/bills/mca/title_0720/chapter_0030/part_0010)
• Clearing title: Probate issues letters testamentary or administration. Title companies often require these letters to transfer or sell property.
• Protecting creditors: The probate process notifies creditors and settles debts before distribution.

In short, if your property lacks a built-in transfer mechanism, Montana law requires probate to ensure proper title transfer and creditor protection.

Helpful Hints

• Review your deed: Check if you hold joint tenancy or a transfer-on-death deed.
• File the right documents: For a transfer-on-death deed, record the affidavit of death and deed in the county clerk’s office.
• Consult the probate statutes: See Mont. Code Ann. §§ 72-3-101 to 72-3-301 for probate rules.
• Consider estate planning: Use joint tenancy or a transfer-on-death deed to avoid probate for specific properties.
• Plan for taxes: Even non-probate transfers can trigger tax filings.
• Seek legal review: An attorney can confirm your title strategy and assist with probate filings.